Passama v. State

Decision Date09 April 1987
Docket NumberNo. 17315,17315
Citation103 Nev. 212,735 P.2d 321
PartiesEdward George PASSAMA, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Barbara Byrne, Elko County Public Defender, Elko, for appellant.

Brian McKay, Atty. Gen., Carson City, Mark D. Torvinen, Dist. Atty. and John S. McGimsey, Deputy Dist. Atty., Elko, for respondent.

OPINION

PER CURIAM:

This is an appeal from a judgment of conviction following a trial to the court. Edward Passama was convicted of three counts of lewdness with a child under fourteen years of age in violation of NRS 201.230. In this appeal, Passama contends his confession was coerced and therefore involuntary, so that it was a violation of due process to admit it at trial. We agree.

FACTS

Passama, a resident of Jackpot, frequently permitted neighbor children to play in his home. One of these children reported some questionable behavior on Passama's part to her parents, and the police began to investigate whether he had been molesting the children. Passama voluntarily went to the sheriff's office in Elko to take a polygraph examination. The interrogation that followed was approximately five hours long and was recorded on video tape. Near the end of the five hour period, Passama confessed and signed two statements containing admissions.

Passama was initially charged with five counts of sexual assault, but only bound over to district court on three counts of lewdness with a minor. In district court he moved to suppress his statements and the video tape of the confession on the ground that the confession was involuntary as a result of psychological coercion. The motion was denied. During a bench trial, the video tape and Passama's statements were introduced into evidence.

Passama testified and stated that the girls' accusations were not true. He admitted he played with the girls and tickled them, but denied anything improper had occurred. He said he wrote the statements because he was pressured to do so by Sheriff Miller. He said Detective Ciszewski, who was also present during part of the interrogation, told him what to write.

DISCUSSION

A confession is admissible only if it is made freely and voluntarily, without compulsion or inducement. Franklin v. State, 96 Nev. 417, 421, 610 P.2d 732, 734-735 (1980); see also Crew v. State, 100 Nev. 38, 675 P.2d 986 (1984). A criminal defendant is deprived of due process of law if his conviction is based, in whole or in part, upon an involuntary confession, and even if there is ample evidence aside from the confession to support the conviction. Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964). In order to be voluntary, a confession must be the product of a "rational intellect and a free will." Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). A confession is involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963).

In recent cases, the United States Supreme Court has reiterated its view that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985); Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The court has retained this due process focus even after developing extensive law on the Fifth Amendment privilege against self-incrimination and applying it to the states. See Colorado v. Connelly, 474 U.S. 104, 107 S.Ct. at 520; see also Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The due process requirement that a confession must be voluntary to be admissible is independent of the Fifth Amendment concerns set out in Miranda and its progeny. See Miller v. Fenton, 474 U.S. 104, 106 S.Ct. at 449. The Miller court stated:

... [T]he admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant's will was in fact overborne.

Id. 474 U.S. 104, 106 S.Ct. at 453, emphasis in original.

To determine the voluntariness of a confession, the court must consider the effect of the totality of the circumstances on the will of the defendant. See Schneckloth v. Bustamonte, 412 U.S. 218, 226-227, 93 S.Ct. 2041, 2047-2048, 36 L.Ed.2d 854 (1973). The question in each case is whether the defendant's will was overborne when he confessed. Id. at 225-226, 93 S.Ct. at 2046-2047. Factors to be considered include: the youth of the accused; his lack of education or his low intelligence; the lack of any advice of constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of physical punishment such as the deprivation of food or sleep. Id. at 226, 93 S.Ct. at 2047.

Applying the totality of the circumstances test to the instant case, we conclude the confession was involuntary because Sheriff Miller had succeeded in overbearing Passama's will. Although Passama is not young or uneducated, his intelligence is low average. Passama was advised of his constitutional rights at the beginning of the interrogation and waived them. The five hour length of the detention and the repeated and prolonged questioning that occurred during that time are far more important factors. The sheriff did not provide Passama with any food or drink other than coffee, and did not allow him to speak to his fiancee. See Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (detainee not allowed to call his wife). Passama stated repeatedly he trusted Miller, and Miller was initially very friendly.

The promises Miller made to Passama are the crucial aspect of the interrogation. If these promises, implicit and explicit, tricked Passama into confessing, his confession was involuntary. See Franklin v. State, supra, 96 Nev. at 421, 610 P.2d 732. Miller told Passama that he would tell the prosecutor if Passama cooperated. This can be a...

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84 cases
  • Maestas v. State
    • United States
    • Nevada Supreme Court
    • 29 mars 2012
    ...178.602, but considering the totality of the circumstances reflected in the record and the factors outlined in Passama v. State, 103 Nev. 212, 214, 735 P.2d 321, 323 (1987), we discern no plain ...
  • People v. Elias V. (In re Elias V.)
    • United States
    • California Court of Appeals Court of Appeals
    • 9 juin 2015
    ...1023–1024 (en banc); In re J.F. (D.C.2010) 987 A.2d 1168 ; State v. Rettenberger (Utah 1999) 984 P.2d 1009, 1020 ; Passama v. Nevada (1987) 103 Nev. 212, 735 P.2d 321, 324.) This is why investigators are told not to reveal to suspects all information they have about the crime: Revelation to......
  • Kirksey v. State
    • United States
    • Nevada Supreme Court
    • 16 août 1996
    ...confession. To be admissible, a confession must be made freely and voluntarily, without compulsion or inducement. Passama v. State, 103 Nev. 212, 213, 735 P.2d 321, 322 (1987). A confession must be the product of a free will and rational intellect. Id. at 213-14, 735 P.2d at 322. Physical i......
  • State v. Guein
    • United States
    • Kansas Court of Appeals
    • 20 janvier 2017
    ...considered in the totality of circumstances. See, e.g. , [State v.] Tuttle , 650 N.W.2d [20] at 35 [ {2002) ] ; Passama [v. State] , 103 Nev. [212] at 214, 735 P.2d 321 [ (1987) ]." Swanigan , 279 Kan. at 36–37, 106 P.3d 39.Worse tactics commonly withstand allegations of coercion. See, e.g.......
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4 books & journal articles
  • Suppressing Involuntary Confessions
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2016 Contents
    • 4 août 2016
    ...and noted (among other factors) that the facts in defendant’s confession had been told to him by law enforcement. • Passama v. Nevada , 735 P.2d 321 (Nev. 1987). The Sheriff ’s suggestions regarding how a child sex assault occurred were part of court’s analysis in determining a confession w......
  • Suppressing involuntary confessions
    • United States
    • James Publishing Practical Law Books Suppressing Criminal Evidence Confessions and other statements
    • 1 avril 2022
    ...and noted (among other factors) that the facts in defendant’s confession had been told to him by law enforcement. • Passama v. Nevada , 735 P.2d 321 (Nev. 1987). The Sheriff ’s suggestions regarding how a child sex assault occurred were part of court’s analysis in determining a confession w......
  • Suppressing Involuntary Confessions
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2017 Contents
    • 4 août 2017
    ...and noted (among other factors) that the facts in defendant’s confession had been told to him by law enforcement. • Passama v. Nevada , 735 P.2d 321 (Nev. 1987). The Sheri൵ ’s suggestions regarding how a child sex assault occurred were part of court’s analysis in determining a confession wa......
  • Suppressing involuntary confessions
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2020 Contents
    • 31 juillet 2020
    ...and noted (among other factors) that the facts in defendant’s confession had been told to him by law enforcement. • Passama v. Nevada , 735 P.2d 321 (Nev. 1987). The Sheriff ’s suggestions regarding how a child sex assault occurred were part of court’s analysis in determining a confession w......

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